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Comparing Thai and American Criminal Law: Precedent

Transcript of the above video:

As can be seen in other videos on this YouTube channel, every now and then we'd like to do sort of a comparison contrast between certain aspects of Thai law and certain aspects of American law. To be clear, I'm not a Thai attorney. We have Thai attorneys here on staff at our firm but I have been around the system for a significant period of time. I am an American trained attorney and this is just sort of an overview to understand that there are certain subtle differences or significant differences between the legal system here in Thailand specifically the criminal legal system here in Thailand versus the criminal legal system in the United States.

A couple of things of note with respect to criminal jurisprudence and criminal procedure here in Thailand that is very different from the United States is first of all the lack of precedent. Unlike in the U.S.A. or the other so-called common law jurisdictions most notably the United Kingdom, Australia, Canada and New Zealand and certain various other members of the British Commonwealth, former British Empire. The use of precedent in the common law system is ubiquitous. It's very important. It's almost a quarter stone of the legal tradition in the United States and the Anglo-sphere if you will. Precedent - what are we talking about? Well you'll have a case, it could be hundreds of years old in fact where a judge has made a determination with respect to how a certain issue should be legally analyzed and adjudicated in a given set of circumstances. And so long as those circumstances are fundamentally the same in a later case, the thinking is that said analysis and said adjudicatory processes should remain the same.

This is important because the legal philosophy behind this is a notion of preserving certainty within the legal system. An individual who is operating within that jurisdiction has at least some working knowledge of how the courts would adjudicate certain matters, especially certain matters that have a long legal tradition. So in the criminal context, you know crimes that have been around since the dawn of humanity, things like murder and you know just criminal acts that you know, have been around for burglary and theft things like this has been around for a significant period of time. There's a significant body of jurisprudence on those issues and that body of jurisprudence can be used to sort of predict what a future court, how they would decide a case involving an individual's new case under yes, new circumstances insofar as a different time but so specifically similar circumstances to a prior case.

So we utilize that precedent in the common law system and we utilize it to such an extent that as I said previously, it's a cornerstone of the legal system in the US and the Commonwealth. In Thailand they do not utilize precedent as strictly or strictly speaking at all in the Thai system. In fact, each case is adjudicated on a case-by-case basis. They might look to certain other cases or other judges or other rulings or the legislation of commentary in order to come to their decisions. But by and large judges are left to their own devices with respect to making adjudications with respect to criminal culpability in the Kingdom.

When I first came upon lives how we come out here to Thailand, this was sort of an alien concept and I've come to really understand it and see the sort of benefits to it where I want just sort of blindly believed in the common law system. I can truly understand the notion that making decisions on a case-by-case basis and not being bound to some old decision might actually have some merit and have some benefit compared to the Commonwealth system. For example, there's certain common law doctrines that are hundreds of years old. I would argue that in most cases they survive probably because they operate well and they act as a good touchstone. But in some cases, I think that there are certain sort of arbitrary rulings that have just sort of held on sort of tradition for tradition’s sake in certain situations.

And in Thailand, not having such traditions or not having such a an obsession with maintaining such legal analysis traditions can have a significant benefit insofar as each case is taken on its own merits based on its own facts and looked at sort of fresh if you will compared to sort of, just one case of many. That being said, I can also see the arguments against that but understanding that there is a massive difference between both of these systems and that difference can have a significant impact in the way in which a criminal proceeding would be adjudicated here in Thailand versus the way it might be adjudicated in a common law jurisdiction.